D. Appeals to the Supreme Court of Canada

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 421-423

Page 421

As noted above in Section A, in unusual circumstances matters other than a conviction or acquittal can be appealed to the Supreme Court under section 40 of the Supreme Court Act. The more important issue, however, is the actual appeal of the result at trial beyond a provincial court of appeal. Sections 691 to 695 create a right to appeal decisions of a court of appeal regarding indictable offences to the Supreme Court

Page 422

of Canada.¹³⁷The grounds upon which such appeals can be brought, and the circumstances in which they are permitted, are much narrower than the first level of appeal.

An appeal to the Supreme Court of Canada can only be based upon a question of law; no other ground of appeal is permitted. When an issue constitutes a question of law, as opposed to a question of mixed law and fact, has already been discussed in the context of appeals to the court of appeal, and that analysis is equally applicable here. However, there are some considerations that are unique to the Supreme Court context.

A court of appeal can, under section 686(1)(a)(i), allow an appeal based on a finding that it was unreasonable or cannot be supported by the evidence. This question obviously could involve some consideration of facts, and the unreasonableness of a particular verdict might raise questions of mixed law and fact. However, as a class, the question of whether a court of appeal has properly applied section 686(1)(a)(i) is a question of law. It is therefore possible to bring an appeal to the Supreme Court based on whether the court of appeal ought to have allowed the appeal.¹³⁸Similarly, under section 686(1)(b)(iii) a court of appeal can use the curative proviso and dismiss an appeal based on the finding that there was no substantial wrong or miscarriage of justice. Once again, whether the court of appeal has made a correct decision in applying the curative proviso is a question of law and so is appealable to the Supreme Court.¹³⁹Presumably, the same rationale should apply to the "procedural irregularity" saving provision in section 686(1)(b)(iv).

Apart from the fact that the only ground of appeal is on a question of law, there is also the issue of when the accused or the Crown will be permitted to appeal. For the most part, appeals are permitted in only two circumstances: (1) where a judge of the court of appeal dissents on a question of law, or (2) when the Supreme Court gives leave to appeal a question of law. These are the only...